25.1 In General
The title examiner must review the index for state environmental matters related to real property as well as federal environmental liens. The following matters discussed in Sections 25.2 and 25.3 affect the marketability of title.
25.2 The Hazardous Site Response Act
The Hazardous Site Response Act (O.C.G.A. Section 12-8-90 et seq.) requires the Georgia Environmental Protection Division of the Department of Natural Resources to inventory all known or suspected sites where hazardous wastes, hazardous constituents or hazardous substances (“Hazardous Materials”) have been disposed of or released. This inventory is known as the Hazardous Site Inventory. The Georgia Environmental Protection Division is required to annually send a copy of the inventory of sites listed by county to the clerk of each superior court of the state. A copy of the most current inventory is maintained in the room in which the deeds of records of the county are kept.
Comment: O.C.G.A. Section 12-8-97(a) requires the annual filing of the Hazardous Site Inventory to begin July 1, 1994.
The Hazardous Site Response Act requires that the owners of any property listed on the Hazardous Site Inventory that is designated as having a known release and needing corrective action due to the presence of Hazardous Materials provide record notice of this fact. Notice must be provided on the deed, mortgage, deed to secure debt, lease, rental agreement, or other instrument given by the property owner which creates an interest in or grants a use of the property. The owners of property are also required to file a recordable affidavit (pursuant to O.C.G.A. Section 44-2-20) with the Clerk of the Superior Court of each county in which the property or any part of the property is located. This affidavit will include a statement that the property has been listed on the Hazardous Site Inventory that is designated as having a known release and needing corrective action due to the presence of Hazardous Materials.
Comment: Neither the notice nor the affidavit of the property owner has to be filed until any contest under O.C.G.A. Section 12-8-97(f) has been resolved adversely to the property owner. See O.C.G.A. Section 122-8-97(c).
25.3 Comprehensive Environmental Response, Comprehensive, and Liability Act of 1980
Section 107(1) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA;” 42 U.S.C. Section 9607) provides that the United States Environmental Protection Agency can file a notice of a lien on all real property belonging to an “owner” or “operator” for all costs and damages for which the “owner” or “operator” is liable to the United States. The notice of the lien is filed in the clerk’s office in the superior court in the county where the property is located and recorded in the same manner as deeds.